In the life of almost every employee, sudden absence from work arises. In such a situation, a person can take a vacation at his own expense. The right to it is regulated by Article 128 of the Labor Code of the Russian Federation . From this norm it follows that such a vacation has the following characteristics:
- Provided without salary.
- Given based on the employee’s application.
- The employee must retain his job.
- The duration of the vacation is determined by agreement between the employer and employee.
- Since the salary is not maintained, the employer does not have to pay vacation pay for the period of such vacation.
Is it necessary to provide?
As a general rule, the employer provides the employee with leave at his own expense if there is a good reason. This could be a family circumstance or even just a desire to relax - the degree of validity of the stated reason is determined by the company itself (IP).
But there are certain situations when leave without pay is granted regardless of the employer’s wishes. These cases are collected in the following table.
Table. When is it necessary to provide vacation at your own expense?
| Category of employees and reason for which leave is granted | Duration | Base |
Any employee in the event of:
| Up to 5 days (hereinafter - calendar days) | Part 2 of Article 128 of the Labor Code |
| Employee – graduate of preparatory departments at universities and applicants | Final exams in preparatory departments – 15 days. Entrance tests – 15 days | Part 2 of Article 173 of the Labor Code |
| Employee – full-time student at a university that has state accreditation | Interim certification – 15 days per academic year. Preparation and defense of the diploma project with passing the final state exams – 4 months. Passing final state exams – 1 month | Part 2 of Article 173 of the Labor Code |
| Employee - applicant to a secondary vocational education institution that has state accreditation | Entrance tests – 10 days | Part 2 of Article 174 of the Labor Code |
| An employee who studies at a secondary vocational education institution that has state accreditation (full-time study) | Interim certification – 10 days per academic year. Preparation and defense of qualifying work and passing the final state exams – two months. Final exams – one month | Part 2 of Article 174 of the Labor Code |
| Employee – participant of the Great Patriotic War | Up to 35 days a year | Part 2 of Article 128 of the Labor Code |
| Retired employee (by age) | Up to 14 days a year | Part 2 of Article 128 of the Labor Code |
| Employee - father (mother) or spouse of military personnel who died or died due to injury, concussion or injury received during the performance of military service duties or as a result of a related disease | Up to 14 days a year | Part 2 of Article 128 of the Labor Code |
| Disabled employee | Up to 60 days a year | Part 2 of Article 128 of the Labor Code |
| An employee-parent or spouse of an employee of internal affairs bodies, the federal fire service, authorities for control of the circulation of narcotic drugs and psychotropic substances, customs authorities, employees of institutions and bodies of the penal system who died or died as a result of injury, contusion or mutilation received during service or as a result of an illness related to service | Up to 14 days a year | Part 2 of Article 128 of the Labor Code |
| Employee – war invalid | Up to 60 days a year | Subparagraph 17, paragraph 1 of Article 14 of the Law of January 12, 1995 No. 5-FZ |
| Employee is a combat veteran | Up to 35 days a year | Subparagraph 11, paragraph 1 of Article 16 of the Law of January 12, 1995 No. 5-FZ |
| Employee - member of the election commission and candidate in the elections of deputies of the State Duma, President of the Russian Federation | The period from the date of registration of the federal list of candidates by the Central Election Commission of Russia until the day of official publication of the results of the elections of deputies of the State Duma. The period from the date of registration of candidates by the Central Election Commission of Russia until the day of official publication of the results of the elections of the President of the Russian Federation | Part 4 of Article 22, Part 1 of Article 47 of the Law of May 18, 2005 No. 51-FZ, Part 14 of Article 11 of the Law of November 26, 1996 No. 138-FZ, paragraph 3 of Article 16, paragraph 1 of Article 42 of the Law of January 10, 2003 No. 19-FZ, Part 14 of Article 11 of the Law of November 26, 1996 No. 138-FZ |
| A military officer who served in military units, military educational institutions that were not part of the active army, during the period from June 22, 1941 to September 3, 1945 for at least six months, or a military serviceman awarded orders or medals of the USSR during this period | Up to 35 days a year | Subparagraph 9 of Article 17 of the Law of January 12, 1995 No. 5-FZ |
| An employee who worked during the Great Patriotic War at air defense facilities, local air defense, construction of defensive structures, naval bases, airfields and other military facilities within the rear borders of active fronts, operational zones of active fleets, on front-line sections of railways and highways | Up to 35 days a year | Subparagraph 10, paragraph 1 of Article 19 of the Law of January 12, 1995 No. 5-FZ |
| Employee awarded the badge “Resident of besieged Leningrad” | Up to 35 days a year | Subparagraph 9, paragraph 1 of Article 18 of the Law of January 12, 1995 No. 5-FZ |
| An employee working in the Far North and areas equivalent to the Far North, traveling to the place of vacation | Determined depending on the time required to travel to the place of use of the vacation and back | Part 3 of Article 322 of the Labor Code of the Russian Federation |
| Employee – teaching worker of an educational institution (at least every 10 years of continuous teaching work) | 1 year | Article 335 of the Labor Code of the Russian Federation |
| Employee - Hero of the USSR, Hero of the Russian Federation or full holder of the Order of Glory | Up to 3 weeks per year | Clause 3 of Article 8 of the Law of January 15, 1993 No. 4301-1 |
| Employee - Hero of Socialist Labor or full holder of the Order of Labor Glory | Up to 3 weeks per year | Part 2 of Article 6 of the Law of January 9, 1997 No. 5-FZ |
| An employee is a spouse of military personnel from among civilian personnel working in the Special Facilities Service under the President of the Russian Federation, who are granted leave at their request simultaneously with the leave of military personnel on the basis of an application and a certificate from the place of military service of military personnel on the duration of their main leave and its terms carrying out | Part of the leave of military spouses that exceeds the duration of annual leave at their main place of work | Clause 1 of the order of the Main Directorate of Special Programs of the President of the Russian Federation dated August 31, 2009 No. 30 |
| Employee - people's vigilante and other freelance police officers | Up to 10 days a year | Clause 3 of Article 26 of the Law of April 2, 2014 No. 44-FZ |
Vacation at your own expense - only at the request of the employee
An employer cannot send an employee on leave without pay at its discretion. This action will lead to a violation, which is subject to penalties under Article 5.27 of the Code of Administrative Offenses of the Russian Federation.
In this case, the official or individual entrepreneur will be given a warning or a fine in the amount of 1 to 5 thousand rubles . In case of repeated violation, a fine will be imposed in the amount of 10 to 20 thousand rubles . A director may be disqualified for a period of one to three years. The company will be fined from 30 to 50 thousand . In case of repeated violation, the fine will be from 50 to 70 thousand rubles.
An example of an application for vacation at your own expense
If the organization's activities are suspended
Is it possible to place employees on administrative leave if there is a break in the employer’s activities? Contrary to popular practice, this is prohibited! In accordance with Article 128 of the Labor Code of the Russian Federation, a mandatory condition for granting leave at one’s own expense is the employee’s initiative. If the activity is temporarily not carried out, you can register a downtime.
Application for administrative leave for 1 day
When writing an application for administrative leave, the following aspects are taken into account:
- formulated in a free manner;
- addressed to the manager;
- the application must indicate the start date and end date of the vacation;
- indicate the number of vacation days;
- the reason that served as the basis for the decision to take leave without pay is indicated.
For example:
General Director of LLC "ABV"
Molodtsov M.M.
head of legal department
Znaykina Z.Z.
Statement
I request that you grant me administrative leave for 1 day on 03/27/2017 for family reasons.
March 24, 2017
Znaykin Z.Z. _______________
(signature)
When filling out an application, you must be guided by Article 128 of the Labor Code of the Russian Federation.
Documentation
Vacation without pay should be formalized by a regulatory act - an order or directive - in form T-6 . The basis is the employee’s statement. The document is signed by the head of the organization. The employee is also required to sign that he has read the order.
When going on unpaid leave, there are no vacation accruals, so a calculation note in the T-60 form is not issued.
Information about the leave granted should be entered in the employee’s personal card T-2 , in section VIII. The T-54 personal account card is also filled out
The employer may use similar documents developed independently.
Shortened working day or week
The introduction of part-time work at an enterprise is another alternative to administrative leave at the initiative of the employer. The maximum period for which working hours can be reduced is 6 months. Moreover, this is only possible if certain conditions are met. Such a change in the work routine should be associated, for example, with the introduction of new equipment or technology or with the reorganization of the enterprise structure. Another condition is that such innovations may lead to the fact that many workers will have to be fired.
An example is the introduction of an automated line in production, which will replace the manual labor of five people. At the same time, two workers will be able to service it. In this case, it is more advisable to reduce the working hours of all employees than to violate labor laws and send them on administrative leave at the initiative of the employer. Part-time wages are calculated in proportion to the time worked, which allows the company to reduce employee costs.
Shortened working hours can be introduced according to different schemes. You can shorten the five-day week and make working days, for example, 2-3 days. Or you can reduce it by a few hours every working day.
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Employees for whom such a regime is planned to be introduced must be notified in writing about this at least 2 months in advance. Please note that they are not required to agree to new working conditions. In this case, the employer must offer them a similar position, including a lower one. If there are no such vacancies or the employee does not agree to them, then the employment relationship is terminated.
Is it possible to recall an employee from vacation?
According to Article 125 of the Labor Code of the Russian Federation, an employer can only recall an employee from annual paid leave. Recall from unpaid leave is not permitted . This ban also applies to other types of vacations, including educational ones.
Despite the current prohibition, an employee may interrupt his vacation at will. Voluntary return to work does not contradict the Labor Code. In this case, either of the two parties can initiate the termination of the vacation. It is only necessary to agree on all the conditions for early exit.
There are two options for recalling an employee from vacation:
- The employee himself expressed a desire to interrupt his vacation. In this case, he should write a free-form application addressed to the manager about early return to work.
- When the employer is the initiator of the recall, the employee must be given notice of the early termination of leave. The employee must give his consent or refuse. If the answer is positive, consent to recall from vacation must be documented. Based on the written consent of the employee, an order to recall from vacation and return to work is issued in free form. All changes are entered into the employee’s personal card.
Procedure for calculating administrative leave
When calculating administrative leave, it is recommended to be guided by Article 121 of the Labor Code of the Russian Federation. The fact is that when calculating annual regular leave , the length of service that does not affect the amount and provision of leave does not affect only 14 days , which the employee decided to use at his own discretion by writing a statement about it. Administrative leave exceeding the 14-day amount specified by law will have an impact when calculating the next leave.
The calculation of the next vacation, as is already known, depends on the vacation without pay and can be made using the following formula:
| Mo | / | 12 | = | Ku | / | Co. |
Mo - the number of months that a person worked
Ku - the number of vacation days that will be provided to the employee
Ko - the number of planned vacation days, which are regulated by law
When calculating months worked, you can use the following formula:
| Mo* | = | Number of days worked | / | Average number of working days in a month |
* value is rounded to the nearest whole number
For example: a kindergarten teacher was on leave without pay for 34 days. The teacher's vacation is 42 days. How much vacation time can a teacher expect?
The calculation of the next leave is influenced by the part of the administrative leave exceeding 14 days, which in this case is 20 days.
So, it is necessary to calculate the number of months worked: Mo=222/22=10.09=10
Now we count the number of vacation days: 10/12 = Ku/42, Ku = 34.99 = 35 days
If the organization has only one employee
Often a company has only one employee - its director. Does he have the right to take vacation at his own expense? Yes, it is quite. There are no legal restrictions. However, this process has its own nuances.
Before the director goes on such leave, he must be appointed. O. manager - temporarily performing his duties, vested with the right to sign. After all, a company cannot operate without a leader. It must pay taxes, submit various forms of reporting and conduct business activities, which must be recorded and documented.
Duration of leave without pay
Maximum term
If leave is provided at your own expense, which is mandatory (see table above), then its maximum is regulated by law. For example, a disabled person can count on a vacation of up to 60 days a year. In case of death of close relatives, wedding, birth of children, up to 5 calendar days are allowed.
The duration of administrative leave may change upward, but this is the employer’s right , not his responsibility.
The maximum period of additional leave provided to an employee without pay is determined by agreement with the employer. It can be either several hours or several years.
Vacations lasting more than 14 calendar days per year are not included in the length of service taken into account when determining the right to the next paid vacation. Insurance premiums for this period are also not charged.
Minimum duration
Vacation without pay can be granted even for a few hours. The employee must indicate the desired period in his application - it is written in free form.
In sections “B” and “C” of the order for granting leave in Form No. T-6, columns are entered to indicate the number of hours. Section VIII of the employee’s personal card contains information about the leave provided, and the time sheet contains the actual hours worked.
Let's say an employee takes 3 hours off. His normal working hours are 8 hours a day. In the working time sheet, the total duration of work is indicated by the number “01” or the code “I” , and the vacation time is indicated by the number “16” (code “TO” ). Payment is made according to the hours indicated on the timesheet.
The following options are possible for providing an employee with leave (legal release from work) for just a few hours :
- If you regularly use this type of leave, it is necessary to establish, on the basis of Articles 72, 93 of the Labor Code of the Russian Federation part-time mode:
- in the additional agreement to the employment contract, specify the exact start and end times of work, the deadline for installing this mode, as well as the length of the working week;
- In the time sheet it is necessary to indicate only the hours actually worked, because wages directly depend on their number.
- If this type of leave is used irregularly or if the employee is absent for less than 4 hours per working day, leave without pay should be taken out. There is no minimum duration provided for by law.
Employer's liability for failure to provide administrative leave
Failure to provide administrative leave to an employee who is legally entitled to use this leave falls into the category of violation of labor legislation and entails administrative sanctions (Article 5.27 of the Code of Administrative Offenses of the Russian Federation):
| Violator category | Administrative punishment |
| Executive | Warning or fine 1000-5000 rubles. |
| Individual entrepreneur | Fine 1000-5000 rubles |
| Entity | Fine 30,000-50,000 rubles |
| In case of repeated violation | |
| Executive | Fine 10,000-20,000 rubles or disqualification for 1-3 years |
| Individual entrepreneur | Fine 10,000-20,000 rubles |
| Entity | Fine 50,000-70,000 rubles |
For example: At GDE LLC, the general director refuses to grant administrative leave to sales manager Kopeikina K.K., who is the spouse of a military serviceman. In her application, the employee indicated that this leave, lasting 4 days, would coincide with her husband’s leave and attached an extract from the order.
In this case, the general director violates Article 5.27. Code of Administrative Offenses and can be held accountable as an official by warning or imposing a fine of 1000-5000 rubles, or an administrative penalty can be imposed directly on GDE LLC with a fine of 30,000-50,000 rubles.
